Clean Water Act?

Acting like we have clean water is not the same as actually having clean water.

After the Clean Water Act (CWA) was passed in 1972 by a bipartisan congressional effort over-riding President Richard Nixon’s presidential veto, America experienced impressive declines in the pollution of its waterways. Then the law was undermined and made toothless by two Supreme Court decisions.

The Supreme Court Acts Questionably

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (in 2001) and Rapanos v. United States (in 2006), the Supreme Court ignored congressional intent and narrowed its definition of the scope of waters covered by the Act. Armed with these decisions, the Bush administration's Environmental Protection Agency and Army Corps of Engineers excluded numerous waters from protection and placed unnecessarily high hurdles to protecting others.

These decisions crushed the underlying structure of the Clean Water Act by casting doubt on what waterways are covered by CWA. Today countless streams, ponds and wetlands are threatened, potentially affecting the drinking water of more than 115 million Americans.

Are navigable rivers the only water worthy of protection?

Because the CWA compels the Environmental Protection Agency and the U.S. Army Corps of Engineers to protect the integrity of the “waters of the United States,” industrial and agricultural interests argue that a reference in the text of the law to “navigable waters” limits federal jurisdiction to waters big enough for a boat. Therefore, they argue, it is permissible to discharge whatever they want into smaller waterways despite the fact that they generally drain into navigable waterways.

After 30 years of intermittent, yet impressive progress, at least 26 water bodies have been denied CWA protections in southern California alone, and the EPA has failed to prosecute hundreds of polluters nationwide who benefit from the confusion.

When the Clean Water Act became law in 1972, it provided states the tools needed to target the worst sources of pollution at the time-- particularly industrial waste and city sewage. The CWA forced both

industrial polluters and sewage treatment plants to use new technology to treat and control pollution. Across the country, the CWA succeeded in restoring many rivers, lakes and wetlands, but the goal of cleaning up America’s waters has never been fully realized.

In fact, enforcement of pollution standards on industries has become more lax in recent years, and the law has done little to rein in pollution that is generated not just by heavy industry but also by individuals: the dirt and contaminants from city streets, lots, houses and lawns that flow into lakes, beaches, bays and rivers when rain washes across the landscape.

Storm Water Runoff

Storm-water runoff is another major source of the pollution in our rivers, lakes and coastal waters.

Storm-water runoff enters coastal waters.

Runoff worsens the more developed an area becomes. More households mean an increase in the number of septic tanks, car washes, golf courses, lawns and streets that can produce contamination. Waterborne contaminants include engine oil, traces of gasoline and paint, lawn fertilizer, chemical flame retardants from furniture, lead and copper from old roofs, and other kinds of grime.

Storm-water pollution usually gets worse as a community grows. In nature, rain seeps slowly into soil; but in a city, it surges across pavement, gathering filth as it pours into storm drains. In some older cities, it sometimes mixes with sewage-treatment sludge, where it can overflow the system and slop out. In other cases, storm water gushes untreated from cities into water bodies. Such pollution is fouling water nationwide, on nearly every beach, bay, lake, river and marsh that is well occupied and urbanized—from San Francisco Bay and the Louisiana bayous to Chesapeake Bay on the mid-Atlantic coast and the Great Lakes.

Storm-water runoff from industrial sources, municipal storm drains, and other sources was not specifically addressed in the 1972 law, and the EPA declined to include urban runoff and industrial storm-water discharges in their enforcement program until they were sued by environmentalists. The courts ruled that storm-water discharges must be covered by the EPA’s permit program.

The requirements are more stringent for cities with populations over 100,000, but  smaller communities have so much discretion they can ignore the problem, and they rarely have the resources

Dead zone fish kill in Aberdeen Creek, Maryland.

to address the problems anyway. The problems of storm-water are worsening in many parts of the United States. A combination of polluted storm water and farm runoff helped create Chesapeake Bay’s “dead zones,” where few or no fish can survive, and the algae blooms that rendered Toledo, Ohio’s water supply undrinkable last summer.

New Rule Proposed by EPA and Army Corps of Engineers

March 25, 2014,  the Environmental Protection Agency and the Army Corps of Engineers jointly proposed a new rule that more closely resembles law than guidelines. It is intended to: reduce confusion about CWA protection, clarify the types of waters covered under the CWA, provide more benefit than cost to the American public, and help states to protect their waters. The rule promises to reinforce the Act’s legal and scientific foundations, provide more long-term certainty to landowners while protecting the health of America’s water.

The rule would restore jurisdiction over tributaries of waters already covered by the Clean Water Act and to all of the wetlands, lakes adjacent to these tributaries and floodplains. This includes intermittent and seasonal streams which flow into larger rivers where fish spawn and the young are

Dry (intermittent) stream bed Coronado National Forest,
southeast Arizona.

reared. The health of a stream bed which is dry in August will determine the health of downstream waters when it rains in the fall.

The rule specifically excludes many man-made ditches, ponds, and irrigation systems from their oversight— and honors current exemptions for normal farming, ranching and forestry operations. Nevertheless,  some industry groups are fighting to prevent changes that would stop them from polluting our waters and filling our wetlands. Agricultural groups, oil companies and Republicans are among the most vocal critics, calling the rule change “a blatant case of EPA overreach” that will burden anyone who has a small body of water in their backyard with onerous regulations and federal intrusion into their affairs.

What can be done?

Although the fight over clean water will continue for some time with the usual suspects lining up on their side of the divide (with great predictability), there are things that can be done to protect our clean water.

Individuals can do the following:

• Limit your use of pesticides and fertilizers, and control runoff containing either.
• Wash your car in a commercial carwash, not your driveway. If you do wash it at home, do so on the lawn to prevent runoff from pouring down storm drains.
• Repair automobile fluid leaks promptly.
• Scoop pet poop and dispose of properly to prevent runoff into streams rivers and coast waters.
• Plant rain gardens, or use rain barrels to capture rain water to prevent rainwater from picking up dirt and pollution on the way to its destination.
• Educate yourself, your family and community. Learn how to report sources of pollution.

Working together…

• Insist new developments in your community employ green building technologies like bioswales (gently sloping troughs similar to rain gardens) and pervious pavement.
• Seek out community groups working on clean water issues and speak out.
• Support efforts to fund infrastructure projects through state and federal grants, or through local storm-water utility fees.
• Support the new rule as a step in the right direction. There are links from the EPA and the NWF below to voice your opinion.

Additional reading
Environmental Protection Agency http://www2.epa.gov/laws-regulations/summary-clean-water-act

Bloomberg BNA (The Bureau of National Affairs) http://www.bna.com/proposed-epa-corps-n17179889094/
   
National Wildlife Federation http://www.nwf.org/What-We-Do/Protect-Habitat/Waters/Clean-Water-Act.aspx